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UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-10978

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTINE T. McDOWELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

March 25, 1997

Before WISDOM, KING, and SMITH, Circuit Judges.

WISDOM, Circuit Judge.

 In accordance with a written plea agreement, Christine T.

McDowell pleaded guilty to making, uttering, and possessing

counterfeit securities in violation of 18 U.S.C. § 513(a). 

McDowell appeals the district court’s decision to depart upwards

from the sentencing guidelines. We affirm.

The defendant was employed as a bookkeeper by David M.

Munson, Incorporated (DMMI) from February 1994 to October 1995. 

In the course of performing this job, it fell upon her to pay the
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bills of the company using DMMI checks. Between May 13, 1994 and

October 15, 1995, McDowell altered over $290,000 of DMMI checks

and deposited the funds into her accounts at Bank United Texas in

Dallas. The entirety of these funds was spent on personal

expenses. According to McDowell, the money enabled her to

purchase clothes for her children, go on vacations, renovate her

home, and repair her automobile.

In the presentencing report, the probation officer

recommended a base offense level of six under § 2F1.1(a) of the

sentencing guidelines, an eight level increase under §

2F1.1(b)(1)(I) because the amount embezzled exceeded $200,000 but

was less than $350,000, a two level increase under § 2F1.1(b)(2)

because the offense involved more than minimal planning, a two

level increase under § 3B1.3 for McDowell’s role in the offense,

no adjustment for obstruction of justice, and a three level

decrease under §§ 3E1.1(a)and (b)(1) for acceptance of

responsibility. Based on these recommendations, the probation

officer calculated a total offense level of 15 and a level I

criminal history category. These figures yield an imprisonment

range of 18 to 24 months. McDowell had no objection to the

presentencing report.

During a sentencing hearing on July 8, 1996, McDowell

informed the court that she had been caught embezzling from a

previous employer only two months before she began working for

DMMI. McDowell stated that the total amount embezzled was

$10,000 and acknowledged that her prior conduct was exactly the
 

1 A second hearing was held on July 22, 1996. At that hearing, counsel for the defendant

informed the court that McDowell was under the influence of drugs (phenobarbital) and was not

competent to proceed. The court remanded the defendant to the custody of the U.S. Marshalls and

set sentencing for July 29, 1996.

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same as that of the instant offense. No criminal prosecution

resulted because the defendant’s mother made restitution to the

employer. The court informed the defendant that it was

considering an upward departure because of McDowell’s prior

conduct.

At the third sentencing hearing1 on July 29, 1996, the court

asked McDowell to provide reasons why it should not depart

upwards. Counsel for the defendant argued in favor of leniency,

but did not directly address the issue of an upward departure. 

The district court adopted the recommendations of the PSR,

yielding an offense level of 15 and a level I criminal history

category. The court then departed upwards from the guidelines by

increasing McDowell’s offense level to 19 and sentencing her to

37 months imprisonment. McDowell did not object to the district

court’s method of calculating the upward departure, to the extent

of the upward departure, or to the reasons given for the

departure.

Standard of Review

Although failure to preserve an alleged error through

contemporaneous objection generally precludes our consideration

of that issue on appeal, Federal Rule of Criminal Procedure 52(b)

allows us to consider plain errors or defects affecting

substantial rights. Under this rule, a court may correct
 

2 United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir.) (en banc), cert. denied, 115 S.Ct.

1226 (1995); United States v. Olano, 507 U.S. 725, 731-37 (1993).

 

3 Olano, 507 U.S. at 735-36.

 

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Id.(quoting United States v. Atkinson, 297 U.S. 157 (1936)).

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forfeited errors only when the appellant shows that: (1) there is

an error, (2) the error is clear or obvious, and (3) the error

affects the substantial rights of the defendant.2 If these

factors are established, the decision to correct the forfeited

error is within the court’s sound discretion.3 We may decline to

exercise that discretion unless the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings.4

Departure Under Which Section?

The government urges that the district court’s upward

departure was appropriate and warranted under § 5K2.0 of the 

sentencing guidelines. McDowell, on the other hand, maintains

that the departure from the guidelines was erroneous under the

requirements imposed by this court for departure pursuant to §

4A1.3 of the guidelines. McDowell’s brief makes absolutely no

mention of § 5K2.0.

The roots of this controversy lie in the oral comments of

the district judge at sentencing. As the government

acknowledges, the district court mentioned § 4A1.3 in discussing

the reasons for its departure. The court did not state, however, 

that the departure was being made under that section. On the

contrary, the court’s written judgment clearly states that the
 

5 See e.g. Scott v. United States, 434 F.2d 11 (5th Cir. 1970); Ward v. United States, 508 F.2d

664 (5th Cir. 1975); United States v. Chagra, 669 F.2d 241 (5th Cir.) cert. denied 459 U.S. 846

(1982); United States v. Shaw, 920 F.2d 1225 (5th Cir.) cert. denied 500 U.S. 926 (1991).

 

6 See e.g. Scott, 434 F.2d at 20; Schurmann v. United States, 658 F.2d 389 (5th Cir. Unit A

1981).

 

7 As we address below, the district court’s recognition that § 4A1.3 might apply to the

defendant’s conduct does not render a departure under § 5K2.0 erroneous where the court

determinesthatsome aspect ofthe conduct in question placesit outside the range of cases considered

by the Sentencing Commission in drafting § 4A1.3.

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court departed from the guidelines under § 5K2.0 alone.

We are mindful of the long line of cases holding that in the

event of a conflict between an oral pronouncement of judgment and

a written judgment the oral pronouncement controls.5 We are

similarly cognizant of the rule that an ambiguity between written

and oral pronouncements is to be resolved by examining both

statements to arrive at the court’s intent.6 In the present

case, however, we find neither a conflict nor an ambiguity. 

Rather, we observe a definite statement in the written judgement

that the departure was made under § 5K2.0. The record reflects

merely an offhand reference during the sentencing hearing to the

comments accompanying § 4A1.1 regarding justifications for

departures under § 4A1.3.7 Accordingly, we conclude that the

court departed upwards under § 5K2.0.

Justifications for the Departure

We turn now to determine whether the reasons given for the

departure under § 5K2.0 amounted to clear error by the district

court. 

The purpose of § 5K2.0 is to allow a district court to

deviate from the sentencing guidelines where “there exists an
 

8 U.S. SENTENCING GUIDELINES MANUAL § 5K2.0 (1995).

 

9 Koon v. United States, 116 S.Ct. 2035, 2044 (1996) (internal quotations omitted).

 

10 The written judgment of the court indicates that the departure was based on the “likelihood

of recidivism based on similar prior offense conduct which did not result in prosecution USSG §

5K2.0". No mention is made of any other reason.

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aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described.”8 As the Supreme Court

recently noted:

. . .[T]he Commission intends the sentencing courts to

treat each guideline as carving out a ‘heartland,’ a

set of typical cases embodying the conduct that each

guideline describes. When a court finds an atypical

case, one to which a particular guideline

linguistically applies but 

where conduct significantly differs from the norm, the court may

consider whether a departure is warranted.9

The statements of the district court at sentencing indicate that

the court identified two factors that placed McDowell’s case

outside the “heartland”.10 The court first addressed the high

probability of recidivism based on McDowell’s prior extortionist

conduct: “I believe that this conduct, which is not taken into

consideration by the guidelines adequately. . .indicates a

greater likelihood of recidivism on your part, inasmuch as it is

precisely the same conduct.” The problem of prior uncharged
 

11 Indeed, this likely explains the courts reference to § 4A1.3 at the sentencing hearing.

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conduct is squarely addressed by § 4A1.3 of the guidelines.11

That section allows for departure from the guidelines where

“reliable information indicates that the criminal history

category does not adequately reflect the seriousness of the

defendant’s past criminal conduct or the likelihood that the

defendant will commit other crimes. . . . Such information may

include. . .prior similar adult criminal conduct not resulting in

a criminal conviction”. Although this section applies

“linguistically” to McDowell’s case, the district court found

aspects of this case atypical. The court stated: 

[Y]ou have uncharged conduct here that is not taken

into consideration in any way. And the thing that

strikes me is it is for exactly the same thing, exactly

the same offense. You embezzled from an employer you

were keeping books for. You were caught on the first

one to give any person of a normal conscience a chance

to be remorseful, certainly that would make an

impression, I think, on most individuals that are

caught, their family gets involved and they bail them

out of trouble. They dodge the bullet, if you will,

not having to go to jail and then it makes such an

impression that two months later you’re back out doing

it again.

The court, in essence, made a finding that particular aspects of

this prior conduct -- it’s proximity to the charged offense and
 

12 Section 5K2.0 specifically statesthat “the court may depart from the guidelines, even though

the reason for the departure is taken into consideration in the guidelines . . . if the court determines

that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.

 

13 Koon, 116 S.Ct. at 2046-2047.

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its similarity to the conduct underlying the charged offense --

took it out of the “heartland” of cases considered by the

Sentencing Commission in drafting § 4A3.1. As such, the court

concluded that departure under §5K2.0 was appropriate. This

decision regarding the typicality of cases is better left to the

district court.12 As Koon noted:

. . .[T]he district court must make a refined

assessment of the many facts bearing on the outcome,

informed by it’s vantage point and day-to-day

experience in criminal sentencing. . . . District

courts have an institutional advantage over appellate

courts in making these sorts of determinations,

especially as they see so many more guidelines cases

that appellate courts do.13

We find no clear error in the district court’s conclusion that

the likelihood of recidivism, in the light of McDowell’s prior

conduct, warranted an upward departure from the guidelines.

Nonetheless, we find troubling the district court’s second

primary reason for the departure. At the third sentencing

hearing, the court pressed McDowell to state specifically what

had become of the nearly $300,000 in embezzled funds. The

defendant explained that she had nothing to show for it -- that

the money “was just spent”. The court clearly was suspicious of
 

14 The court noted that there is 

. . .a quarter of a million you can’t account for or won’t

account for. I have no confidence that you don’t have the money

squirreled away somewhere. . . . There’s no one in this room who in

an 18-month period could spend a quarter of a million dollars. You

know, maybe if we had Ross Perot in here orsomething he could drop

a quarter of a million dollars and not know where it went. And so

you’re telling me ‘I have no idea what I did with that $250,000, but

I spent this other 50 on these various things’, I don’t believe it.

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this response.14 The judge went on to explain his

dissatisfaction with the available sentencing range, absent

departure, when viewed in the light of the large amount

embezzled. The court stated:

. . .Here’s what just shocks my conscience. The

offense level in this matter by the guidelines is 15

and the criminal history category is I, as I recall. .

. . That provides for 18 to 24 months. If I gave you

24 months -- you stole $292,000 that I want to doubt

real serious you’re going to have the wherewithal to

pay back. So in essence what you will accomplish, if I

give you two years, is . . . you’re in essence

basically earning $145,000 a year. . . . So what Im

saying is that giving you two years, I really question

how much punishment that is, inasmuch as you have had

the benefit, the use and enjoyment, as well as your

family, of $292,000 of Mr. Munson and his family’s

money. So I’m going to sentence you at an offense

level of 19, departing upward four levels because of

the similar uncharged offense . . . and I’m going to

sentence you to 37 months. So now you’re making 70 or
 

15 U.S. SENTENCING GUIDELINES MANUAL § 5K2.0 commentary at 311 (1995) (emphasis

added).

 

16 Koon, 116 S.Ct. at 2053-54. See also United States v. Stout, 32 F.3d 901 (5th Cir. 1994)

(holding that where a sentencing judge offers both acceptable and unacceptable reasons for a

departure, any error is harmless).

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80 thousand a year while you sit in jail.

This reasoning cannot be upheld. Section 5K2.0 was intended to

allow departure based on a character or circumstance that places

a case outside the “heartland” of cases considered by the

Sentencing Commission. However, as stated in the commentary to

section 5K2.0, “In the absence of [such a character or

circumstance], a sentence outside the guideline range is not

authorized. For example, dissatisfaction with the available

sentencing range or preference for a different sentence than that

authorized by the guidelines is not an appropriate basis for a

sentence outside the applicable guideline range.”

15 We cannot

describe the above reasoning of the district court as anything

but dissatisfaction with the available sentencing range. 

Consequently, the court’s reasoning is erroneous.

Despite the court’s error in departing based on its own

dissatisfaction with the available sentence, remand is not

required to correct this error. Remand is required unless we

find that the district court would have imposed the same sentence

absent reliance on the improper factor.16 Here, the district

court had the authority to make the departure based only upon the

likelihood of recidivism. Indeed, the court’s written judgment

reflects this very conclusion. As such, although the court
 

17 Lee, 989 F.2d at 182.

 

18 United States v. Huddleston, 929 F.2d 1030, 1031 (5th Cir. 1991).

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erred, we find the error to be harmless.

Extent of the Departure

The appellant next asserts that the extent of the departure

constituted plain error. An upward departure should be affirmed

if the district court provides acceptable reasons for the

departure and the extent of the departure was reasonable.17 This

circuit does not, however, require a district court to state with

particularity the reasons for the extent of a departure.18

Viewing the record as a whole, we cannot say that the departure

in this case was unreasonable. Accordingly, we find no

reversible error in the district court’s upward departure from

the sentencing guidelines.

AFFIRMED.